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Monday, December 13, 2010

Crush Videos and Obscenity

Last week President Obama signed into law the Animal Crush Video Prohibition Act of 2010, Congress's response to the Supreme Court's decision striking down an analogous (but far broader) statute last term in US v. Stevens.  The statute raises a number of interesting issues, but one that struck me off the bat is the concept of "obscene" crush videos.  The statute focuses heavily on obscenity: it includes a finding that crush videos satisfy all the requirements under the Court's Miller standard, and its operative provision requires that a video be obscene before it comes under the prohibition.

So here's my first-blush question: does the concept of obscenity make sense in the context of sexual fetishes not involving sex?  In Miller the Court explicitly says that obscenity statutes must confine themselves to depictions of sexual conduct. And indeed, conceptually the Miller elements seem to be a bad fit with sexual fetishes involving activity most of us would consider non-sexual.  For example, it's one thing to say that a depiction of sexual activity appeals to the prurent interest in sex; there's a sense of voyeurism about sexual depictions that easily fits into the concept of prurience.  But a depiction of crushing an animal, or of a man or a woman in a police uniform, or of any other scene that someone might find to be titillating?  For most of us these depictions have minimal sexual content, but for those with the particular fetish, their sexual content is quite high. 

There's an obvious -- if ironic -- truth here: people who have majoritarian sexual stimulants -- call it "good looking people getting naked and acting sexually" -- can expect to have the most extreme versions of their sexual "fetishes" subject to regulation (at least at the margins), while people with distinctly minority tastes -- e.g., getting turned on by uniforms -- will usually have a protected supply of material.  Nobody would ever think of banning depictions of uniforms because some people find them a turn-on.  The interesting question arises when there are depictions of conduct -- such as crushing animals -- that presumably has, at best, miniscule social value, but that serves as a sexual fetish.  Can we appropriately think of that as obscenity?  Maybe we can, but it seems we'd have to alter not just the technical aspects of Miller's holding, but our entire conception of what it means for something to be sexually obscene.

Posted by Bill Araiza on December 13, 2010 at 08:49 AM | Permalink

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Comments

Because it means government could define *anything* that is patently offensive as obscenity, so long as *someone* finds it sexually titillating. But patently offensive and even low-value speech is supposed to enjoy protection, except where it crosses into those narrow categories.

Posted by: Howard Wasserman | Dec 14, 2010 7:22:45 AM

I think you make a very good point; I can't see how you can define sexual conduct in a way that's not relative to what viewers find sexual without leaving out all sorts of things that almost anyone would find sexual. Only a relative definition can account for what we call sexual, and therefore crush videos have to come in. Sexual conduct can't be limited to sex itself; Miller tells us it includes lewd exhibition and even depictions of excretory functions, neither of which are sex. Why are these things sexual then? Simply because people find them so, not because of any intrinsic sexual content they possess. You can say that those things are objectively sexual because they involve genitalia, but (a) it doesn't make any more sense to say that a body part is intrinsically sexual because it can be sexually used than it does to say that legs are intrinsically athletic because one can jump with them and therefore that photographs of kneecaps depict athletic content, and (b) that doesn't even exhaust the class of organs one can be convicted for lewdly exhibiting; cf. topless bars. Their sexual content is a matter of cultural contingency, not of biology. And so it is with crush videos; their sole audience finds them sexually titillating. The only reason it's hard to see them as sexual is that the ordinary person doesn't associate sex with animals; if these were videos of women stomping on naked men, everyone would recognize that as sexual, albeit in a perverse and repulsive way. For the viewers of these videos, however, gerbils are apparently sexual. I don't see why that isn't enough.

Posted by: Asher | Dec 14, 2010 1:15:51 AM

The obscenity argument is necessary to one argument and only tangentially related to a second argument. The main argument is that this is a new unprotected category; that depends on the obscenity point--Congress is hoping that the Court will be more accepting of a new category that is defined almost step-for-step with a long-recognized category (the definition follows Miller, without the "sexual conduct" element). The second argument is dry-the-market. It does not depend entirely on the obscenity point, but the obscenity argument helps. To the extent the Court is reluctant to accept dry-the-market, the fact that the statute is *similar* to obscenity may help courts' willingness to accept dry-the-market.

Posted by: Howard Wasserman | Dec 14, 2010 12:06:55 AM

Is the obscenity argument even a necessary basis of the constitutionality of the law, or simply a fall back extra argument?

In other words, is the fact that the filmed conduct is illegal and that a market for the videos furthers this illegal conduct sufficient?

Posted by: ohwilleke | Dec 13, 2010 6:20:04 PM

Bill:

I discussed this a couple of weeks ago, including an account of the "obscenity" argument here:

http://prawfsblawg.blogs.com/prawfsblawg/2010/11/in-defense-of-the-new-obscenity.html

Posted by: Howard Wasserman | Dec 13, 2010 10:42:53 AM

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